After Ghomeshi

Wednesday, March 30, 2016

This is the first of nine blog posts tracking feminist reaction to the Ghomeshi verdict. They are based on a panel held yesterday, March 29th, 2016, at the University of Ottawa Faculty of Law.



A case of she said, she said, she said


The judge said:  “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. “

She said:

charming and charismatic
smitten
PLAY
sweet and humble
funny, intelligent, charming and nice
Love Bug not a Hummer
softness, kindness, safe
flirting, kissing

hair grabbed and yanked “really, really hard”
“what have I gotten into here?”
painful
do you like it like that?

confusing
unsure what to think
doesn’t know his own strength?
really intended to hurt?

uneventful
flirting
pub
at his home
music playing
drink, charming

“out of the blue”

hair pulled
head punched
pulled to her knees
like walking into a pole
fear of passing out

rage gone
“you should go”
thrown out like trash

never considered calling the police
who would listen?

BUT:

didn’t consistently mention kissing in all reports
hair extensions or not?
head smashed against the window or not?
thrown to the ground or pulled to the ground?
yoga moves or not?
and no Love Bug at the time
failed to disclose her after-the-fact conduct
flirtatious emails, bikini shot, watching Play – traumatized or not?

The judge said:  “The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models”.  [However, her behaviour is]“at the very least, odd”.   

Verdict:  not reliable.

Next, she said:

Banff Film Festival
playful, flirtatious, fun to be with
dinner, conversation
wanted to “just hold her”
“cheesy” and a “put on”
awkward attempt at a kiss
house tour, organized, well kept
a kiss

hand on the throat, pushed against the wall, choking, slapping
shocked, surprised, bewildered
act calm
as if nothing happened

listening to music
playing his guitar
a kiss good night

a mistake?  a one off event?

more socializing
moody but not violent

Gemini awards
touched her neck
a reminder?

didn’t report 
thought it wasn’t serious enough
she wasn’t “beaten to pieces … broken and raped”
came forward when police asked

BUT:

awkward attempt at a kiss or not?
late disclosure of love letter, sending flowers, karaoke, proposition
choking and then slapping or vice versa or push, slap, slap, pause, slap?

The judge said:  “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.” 

The judge said:  Sending flowers is “an odd behaviour” if a man has just choked you.

The judge said:  “I acknowledge that the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication. However, this is an illustration of the witness’s actual behaviour, evidenced by her own written expressions.”

The judge said:  “It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. DeCoutere embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings.” 

Verdict:  not reliable.

And finally, she said:

“making out” on a park bench
neck squeeze, hands, teeth, uncomfortable, hard to breathe
nothing said
imprecise description, still “trying to figure it out”
came forward later in response to police request

BUT:

claimed not to have discussed with other complainant, but 5000 emails
wanted to “sink the prick” – revenge or “legitimate feelings of victims of abuse”?
late disclosure of her after-the-fact conduct
said she kept her distance, but later admitted “messing around” with him in her home, emailing him to go for a drink

The judge said:  “Playing chicken [with the justice system.  Hoping to get by with] half truths.”

Verdict:  not reliable.

presumption of innocence … fundamental right of every accused
proof beyond a reasonable doubt ... not absolute or scientific certainty, but close to this
not enough even if you believe the accused is probably guilty or likely guilty
historical complaints triggered by scandal – no presumptive adverse inference
incremental disclosure – nothing presumptively suspect

similar act evidence inadmissible – each charge has to be determined on its own
that is, it doesn’t matter that she said, she said, and she said

no need for corroboration
here, “Nothing in addition to the complainants’ word”
here, no “smoking gun”
credibility is key

But she said, she said, and she said.

The judge said:  “I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.”

According to the judge:

impossible to have faith in reliability and sincerity of complainants
reasonable doubt
acquittal
not the same as deciding that these events never happened

Criminal law isn’t about what happened.  It’s about proving that it did.

Beyond a reasonable doubt.

I wonder, “who is law for?”





Sexual Assault Support Centre of Ottawa event

Tuesday, March 15, 2016


Digital Defamation meets Bricks and Mortar Justice – SCC Ruling in the St. Lewis v. Rancourt Defamation Action




On Februrary 18, 2016, the Supreme Court of Canada brought an end to the 5 year ordeal of racist defamation orchestrated by former professor Denis Rancourt against Professor Joanne St. Lewis In denying his Leave to Appeal application, they upheld the July 8, 2015, decision of the Ontario Court of Appeal. This decision found that the Defendant abandoned the trial during Professor St. Lewis’s evidence in chief. In doing so, he failed to lead any evidence of why he was entitled to defame a Black feminist professor using racist language in an online post. Professor and former Dean of Camille Nelson of Suffolk University Law School (Boston) provided expert testimony regarding the particular significance of the racist language within the Black Canadian community. In her expert report she stated in her conclusion that:

Whether the insulter meant something different from the common understanding, or did not intend to be insulting, or asserts some complimentary meaning, the commonly ascribed understanding of [term excluded] amongst Black Canadians and Americans is as described above, as a potent assaultative insult firmly grounded in the history of slavery and the degradation and dehumanization of Black people.

The jury verdict in June 2014 found that the Defendant Rancourt’s cyberbullying was actuated by malice. The jury awarded Professor St. Lewis $350,000.00 in damages including $250,000 in aggravated damages. She was granted a permanent injunction. The Defendant Rancourt was also ordered to remove the defamatory blog articles and cease communicating with Professor St. Lewis directly or indirectly.

For over five years, Professor Joanne St. Lewis was immersed in a defamation case. The Defendant’s actions expanded to attacking the professionalism of almost every judge who ruled against him. Throughout, the Defendant Rancourt remained self-represented. Over 30 court decisions were successfully won by St. Lewis through her counsel. Many of these motions involved settled areas of law that the Defendant sought to challenge. Many of the Defendant's arguments involved repetition that Professor St. Lewis had suffered no damage, her claim of racism was unfounded and it was her legal action that was the true abuse of process.

This Action is a clear demonstration of the high cost of true diversity and inclusion. It requires a measured understanding that human dignity is not a bargaining chip. The University of Ottawa, exercised its discretion and supported Professor St. Lewis’s defamation action against Denis Rancourt. It acknowledged the simple truth that she was defamed while performing her professional duties.


A Tireless Advocate for Women is Recognised

Thursday, March 10, 2016



On March 8, 2016, Sunny Marriner, Ottawa’s tireless advocate for women who have experienced sexual violence, was awarded a Femmy Award. These awards recognize outstanding feminist achievement in the National Capital Region. Sunny has most recently been in the news (and on CBC) for her longstanding struggle to get the Ottawa Police Service to adopt the “Philadelphia Model” to improve police handling of sexual assault cases. We celebrate her with this description of her outstanding contributions taken from her nomination letter, written by Liz Sheehy:

For 18 years Sunny has advocated for women who have experienced sexual violence in Ottawa. For the bulk of those years she worked at the Sexual Assault Support Centre, focusing on marginalized young women. More recently she has moved to the position of Executive Director of the Ottawa Rape Crisis Centre. Her new position reflects her extensive experience as a sexual assault counsellor; her knowledge, educational and research achievements; her community leadership; and her support for women who have been raped, advocating for them in various contexts—in education, housing, social welfare, criminal proceedings, and criminal injuries compensation, policing and law reform.

Sunny has worked tirelessly on individual women’s files, for example preparing briefs for the Criminal Injuries Compensation Board in support of women’s compensation claims. Most recently she worked around the clock to prepare a 50-page summary documenting the woman’s suffering and multiple failed system responses. Sunny’s tenacity and her commitment to achieving a measure of “justice” means that some of her files have been active for the full 18 years of her Ottawa work life. Sunny has steadfastly attended criminal court with raped women, even though sadly, over 18 years, she has never ONCE seen a conviction ensue.

Sunny has contributed to women’s equality demands in the context of sexual assault over many activities. She is a public educator who has addressed UOttawa law students and organized and participated in countless events aimed at informing Ottawans of the legal and systemic challenges raped women face (ie she participated in Octopus Books’ “Workshop on Consent”). She attended graduate school at Carleton in order to study how “expertise” is constructed in sexual assault trials and to position herself as a potential expert witness. Her conference presentation and book chapter in Elizabeth Sheehy’s book (Sexual Assault in Canada, 2012) demonstrate her extraordinary talents as a researcher and writer, as well as her contributions as an activist and scholar to academic understandings of the impact of the rape trial on women.

Sunny is also a committed law reformer: most recently she has engaged in an 18-month battle with Ottawa Police to adopt the “Philadelphia model” so that police coding of sexual assaults is reviewed and revised by feminist activists who are sexual assault experts. Finally Sunny has also vigorously defended women’s equality rights by her regular online, TV, print and radio media interventions. Sunny is a rock star and a force of nature.

Congratulations, Sunny

First Nations Children Still Holding Their Breath After Landmark Victory Before the Canadian Human Rights Tribunal

Tuesday, March 1, 2016




First Nations Children Still Holding Their Breath
After Landmark Victory Before the Canadian Human Rights Tribunal

Anne Levesque

On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision finding that Canada is racially discriminating against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services ("FNCFS Program") and failing to implement Jordan's Principle to ensure equitable access to government services available to other children (2016 CHRT 2, CHRR Doc. 16-3003).

The decision marked the end of a nine-year legal battle waged by Canada against the First Nations Child and Family Caring Society and the Assembly of First Nations since they lodged the complaint in 2007. Numerous attempts by Canada to have the complaint dismissed on technicalities and troubling conduct on the part of Department of Justice lawyers who failed to disclose tens of thousands of relevant documents caused significant delays in the case, a litigation strategy that came at an immense cost to Canadian taxpayers. In total, Canada spent well over $5.3 million in legal fees fighting this complaint.

The CHRT’s findings against Canada joins the growing chorus of Canadian voices collectively calling for immediate and concrete action by the government to ensure substantial equality for First Nations children. Children have been particularly instrumental in leading the social movement in support of the case. On February 11, 2016, over 600 children marched on Parliament Hill to demand that Canada implement the CHRT’s decision without delay, while thousands of other children organised over 40 similar gatherings across the country. Countless more sent Valentine’s Day cards to Prime Minister Trudeau urging him to “Have a Heart” for First Nations children.

Despite the children’s complete victory before the CHRT and the unprecedented public outcry in support of equality, the new government has still taken no steps to improve the situation of First Nations children living on reserves. This is not for lack of awareness of the discriminatory impacts of the FNCFS Program or how to resolve these problems. As highlighted in the CHRT, Canada has known for nearly two decades that it its child welfare services were not meeting the needs of First Nations families and were driving children into care. More recently, the Truth and Reconciliation Commission’s first call to action related to child welfare and urged the government to take immediate action reduce the number of children in care and fully implement Jordan’s Principle. While on the day of the release of the decision the Minister of Justice stated “there will likely not be any reason why we would seek judicial review of this decision”, at the time of writing this article, Department of Justice lawyers had still not confirmed whether they would be challenging the CHRT decision before the Federal Court.1 

 Canada’s position internationally regarding the case is also cause for concern. In response to a question of regarding the case by the Committee on Economic, Social and Cultural Rights, which is currently reviewing Canada’s human rights track records for the past 10 years, Canada placed more emphasis on an earlier CHRT decision to dismiss the case (2011 CHRT 4, 73 C.H.R.R. D/219) that was later overturned (2012 FC 445, 74 C.H.R.R. D/230; aff’d 2013 FCA 75, 76 C.H.R.R. D/353) than on the CHRT’s finding of discrimination.2 Its reply otherwise vaunted the fact that it had implemented the Enhanced Prevention Focused Approach to funding in six provinces, a funding model that the CHRT found to be discriminatory and which creates incentives to take First Nations children into care needlessly.

While the legal precedent created by the CHRT decision is certainly cause for celebration, it has not yet translated in meaningful change for the over 163,000 First Nations children currently receiving discriminatory child welfare services from the Canadian government. In the absence of the political will or ethical compass to do so, Canada may soon be legally compelled to act by the CHRT which will issues its orders pertaining to immediate and longer term relief remedies in the coming weeks or months.

Anne Levesque, B.A., LL.B., MSt (Oxon) is proud to have been one of the lawyers who represented the First Nations Child and Family Caring Society of Canada in this case.
 

1.   Hansard, 42nd Parliament, 1st Session, Honorable Jody Wilson-Raybould, Minister of Justice, January 26, 2016. Available online at http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Journals&Language=
E&Mode=1&Parl=42&Ses=1&DocId=8073490&File=0. It is noted however that in a speech to the Canadian Bar Association on February 20, 2016, the Honorable Jody Wilson-Raybould stated that she should not be seeking a judicial review of the CHRT decision. However, at the time of writing this article, no written confirmation of this has been obtain by Department of Justice lawyers.
2.   Replies of Canada to the List of Issues, Committee on Economic, Social and Cultural Rights, fifty-seventh session, dated February 4, 2016. Regarding the decision, Canada simply stated: “On January 26, 2016, the Tribunal released its decision on the merits of the complaint. The Tribunal’s finding of discrimination against Canada is being reviewed to determine appropriate next steps”.


Designed by Rachel Gold.